Yale journal of law and feminism

Domestic workers, disproportionately foreign women, have long been accorded a place in our households, but not in our law. Nearly a century ago, the New Deal and Civil.Rights statutes excluded this female labor force from worker protections. More generally, migrant domestic workers around the world have often found themselves with little protection under national or international law. Yet a subtle shift has taken hold in recent decades, as domestic workers bring home the legal world around them. This Article uncovers how domestic workers redistribute power within private households and beyond in ways that influence international lawmaking. It focuses on the scope of diplomatic immunity in domestic workers' lawsuits; the newly vindicated rights of au pairs; and, finally, bilateral treaties between exporters and importers of domestic labor. Across these three arenas, this Article shows how domestic workers reorient conceptions of self-, household, and national sovereignty to build a new legal world of domestic work. The three forms of sovereignty provide a vocabulary to describe how domestic workers are bringing public law from far-off corners into our most private places. In doing so, they are enhancing their own self-sovereignty and challenging that of households and nations.

Of the forms of reproductive labor in which legal scholars have been interested, placenta, the organ developed during pregnancy, has been overlooked. As placenta becomes an object of value for a growing number of individuals, researchers, clinicians, biobanks, and biotech companies, among others, its cultural meaning is changing. At the same time, these various constituencies may be at odds. Some postpartum parents and their families want to repossess their placenta for personal use, while third parties use placentas for a variety of research, medical, and commercial purposes. This Article contributes to the scholarship on reproductive justice and agency by asking who should have access to placentas and under what conditions. The Article emphasizes the insufficient protection the law affords pregnant people wishing to decide what happens to their placenta. Generally considered clinical waste under federal and state law, placental tissue is sometimes made inaccessible to its producers on the ground that it is infectious at the same time as it is made available to third parties on the ground that placenta is discarded and de-identified tissue. Less privileged people who lack the ability to shop for obstetric and other pregnancy-related services that allow them to keep their placentas are at a disadvantage in this chain of supply and demand. While calling for further research on the modus operandi of placenta markets and how pregnant people think about them, this Article concludes that lawmakers should take steps to protect decision-making autonomy over placental labor and offers a range of proposals to operationalize this idea.

American Federal Indian law is often mistakenly assumed to be a gender-neutral discipline. Although Native women suffer disproportionately from numerous maladies, Indian law practitioners rarely engage with questions of gender discrimination or intersectional oppression. Several Canadian scholars have begun to explicate “indigenous feminist legal theory.” This is the first Article in the United States to consider how such a theory might inform the practice of Federal Indian law and tribal law. INTRODUCTION ................................................................................................... 2 I. FEDERAL INDIAN LAW................................................................................... 8 A. Feminist Interventions in Federal Indian Law............................... 12 1. Dollar General v. Mississippi Choctaw .................................. 13 2. United States v. Bryant ............................................................ 16 3. Carpenter v. Murphy ............................................................... 18 B. Federal Statutory Reform.............................................................. 20 C. Future Areas for Reform ............................................................... 21 II. TRIBAL LAW .............................................................................................. 24 A. Gender in Tribal Court Litigation ................................................. 26 1. Hepler v. Perkins ..................................................................... 26 2. Naize v. Naize .......................................................................... 27 3. Riggs v. Attakai........................................................................ 27 4. The Bigfire Cases .................................................................... 28 5. Casteel v. Cherokee Nation ..................................................... 29 B. Tribal Statutory Development....................................................... 30 † Sarah Deer (J.D., University of Kansas) is a citizen of the Muscogee (Creek) Nation and a 2014 MacArthur fellow. She currently teaches at the University of Kansas in the Department of Women, Gender, and Sexuality Studies and the School of Public Affairs and Administration. She also serves as the Chief Justice for the Prairie Island Indian Community Court of Appeals. Mvto (thank you) to the many scholars and friends who have influenced the development of this Article. I especially want to thank Mary Kathryn Nagle (Cherokee) who has played a pivotal role in bringing gender analysis to Federal Indian law practice. All errors, however, are mine alone. 2 Yale Journal of Law and Feminism [Vol. 31:1 III. GENDER EQUITY IN LEGAL EDUCATION&PRACTICE .............................. 31 CONCLUSION .................................................................................................... 34

2019 marks 400 years since the first Africans were brought to the Virginia colony as captives, and deemed not human beings but rather the property of others. Black women have endured reproductive oppression since our arrival in the United States. This Article argues that current methods of reproductive oppression attempt to restore the State’s property interest in the bodies of Black women—specifically the basic rights of use and exclusion— once secured by enslavement. This Article seeks to identify some of the ways that current restrictions on women’s reproductive liberty mimic systems that once formally commodified Black women’s sexuality and reproductive labor. It concludes, however, that a Reproductive Justice framework can help remove these property interests in Black women’s bodies and return them to their rightful “owners.” INTRODUCTION ................................................................................................. 36 I. THERACIALIZATION OF RHETORICOPPOSINGACCESS TO REPRODUCTIVE HEALTH SERVICES....................................................... 37 A. Contraception and Abortion as Tools of a Conspiracy of Genocide ....................................................................................... 37 B. The Co-opting of Black Lives Matter ........................................... 41 C. Slavery Rhetoric............................................................................ 42 D. Racial Targeting at Crisis Pregnancy Centers (CPCs) and Abortion Facilities......................................................................... 44 E. So-called “Race Bans” .................................................................. 46 † Visiting Professor of Law and Executive Director, Women’s Law & Public Policy Fellowship Program, Georgetown University Law Center. LL.M., Georgetown University Law Center; J.D., Yale Law School. With credit to Professor Dorothy E. Roberts, who described the range of legally imposed means of oppressing Black women’s reproductive freedom in KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THEMEANINGOFLIBERTY (2017). This paper was written for Racialization of American Law, taught by Professor Sherally Munshi, at Georgetown University Law Center, Fall 2017. 36 Yale Journal of Law and Feminism [Vol. 31:1 II. CLAIMING A PROPERTY INTEREST INBLACKWOMEN’S BODIES: PAST AND PRESENT ........................................................................................ 48 A. Enslaved Women as Reproductive Property ................................. 49 1. The Right to Use: Being Denied the Benefit of One’s Reproductive Labor ................................................................. 49 2. The Right to Exclude: Rape and Forced Breeding .................. 50 B. Regulating Black Women as Property of the State ....................... 51 1. The Right to Use: Family Caps ............................................... 51 2. The Right to Exclude: The Detainment and Prosecution of Addicted Women..................................................................... 53 III. REPRODUCTIVE JUSTICE: REJECTING THE STATE’S ATTEMPT TO SECURE A PROPERTY INTEREST INBLACKWOMEN’S BODIES .............. 55

Inquiries about a prospective applicant’s salary history are controversial because of the role such inequities play in the broader gender pay equity debate. The use of prior salary to determine compensation can perpetuate pay discrimination for women, especially women of color, and lock them into cycles of underpayment when these inequities are carried over from job to job. Reliance on salary history perpetuates historical discrimination and is antithetical to the language and purpose of Title VII and the Equal Pay Act. The purpose of this paper is to critically analyze the legal reasoning relied upon to interpret these laws, especially in light of the new cases emerging in this field, and to assess the potential impacts of these differing interpretations across the circuit courts. This paper offers a nuanced analysis of the courts’ reasoning, including an analysis of the text and context of the legislation and how this influences appellate courts’ divergent interpretation and reasoning. Given that this circuit split primes the issue for Supreme Court consideration, this Article considers the implications of the various interpretations.

This Article explores the incarceration conditions of trans and gender-nonconforming (TGNC) people in Israel. The lived experience of TGNC people reflects the inherent incoherence of sex/gender and of the carceral system, two regimes of violence that derive power from their promise to provide stability and certitude to society. To uncover the practical meaning of these theoretical positions, the Article examines the Israel Prison Service (IPS) at a unique juncture: before and after an attempt to reform its policies regarding TGNC prisoners. An analysis of these reforms against the backdrop of the previous policy illustrates the carceral system’s inability to meaningfully transform the treatment of TGNC prisoners. To demonstrate this systemic failure, the Article centers the voices of two incarcerated trans women: Dorin and Lena. Both women have lived in male and female facilities before and after the reform. Their demands for safe and dignified treatment have reshaped IPS practices. Following Dorin and Lena’s stories, this Article argues that the IPS’s inability to properly accommodate TGNC prisoners is rooted in the logic of carceral systems themselves, which relies upon gender segregation and isolation as means for protection and rehabilitation. This examination reveals the futility of attempts to define who are and are not “real” men and women. And, by examining the IPS’s limited ability to reform its use of administrative segregation for TGNC prisoners, the theoretical inconsistencies and perniciousness of incarceration itself is exposed. Attempts to distinguish coherently between criminals and noncriminals, women and men, and trans and cis people, and to spatially segregate them according to such classifications, contradicts the heterogeneity and intersectionality of lived experiences and obscures the systemic use of institutional violence to hold these categories in place. Gender nonconformity is situated in this Article as a thread that, when pulled, unravels the carceral regime as a whole.

Transgender individuals have many reasons to be concerned about their welfare in the current political and legislative climate. Transgender elders are especially vulnerable. They are more likely to be disabled than the general elder population. Moreover, transgender elders profoundly fear a future when they must rely on others to maintain and protect their gender identity and dignity. This fear is alarmingly realistic because if a transgender elder becomes incapacitated or requires institutional care, they are likely to face discrimination and other harms by their caretakers. In addition, transgender elders who are incapacitated are particularly at-risk if a non-affirming guardian is appointed to make decisions for them. Before the courts become involved, transgender individuals can take steps, described in this Article, to protect themselves from an unsuitable surrogate. If a court becomes involved, there are actions it can take to ensure that a transgender person is served by a surrogate who will protect their health, welfare, and identity.

For detained children seeking asylum, the Credible Fear Interview (CFI) is highly consequential: those who do not pass are deported to countries in which they fear persecution or torture. We consider whether policies and practices during child CFIs ensure that complete information is elicited in the first instance. We uncover infirmities that prevent some child asylum seekers from fully exercising their rights. Accordingly, we propose reforms across all branches of government to protect minors in CFIs, including updated and better-enforced agency guidelines for child interviews, an end to child detention, habeas review, and appointment of counsel.

This article provides a first critical study of Irish judicial approaches to sentencing women convicted under the Infanticide Act 1949. Through an analysis of archival material, it will be shown that women convicted of infanticide, a homicide offence carrying a maximum of life imprisonment, were given exceptionally lenient sentences, with very few of these offenders being imprisoned following conviction. In the wider context of harsh and restrictive attitudes to female sexuality, and particularly to unmarried mothers, the obvious question that arises when considering sentencing of Irish infanticide offenders, such as Anne, is why women who killed their babies received consistently lenient treatment at the hands of the courts.

Feminist legal theory is a significant area ofscholarly inquiry, and the Supreme Court is no stranger to feminist legal arguments. Yet there has been no previous attempt to determine how the Court reacts to and makes use of the vocabulary offeminism. This Note conducts an empirical study ofSupreme Court cases, and finds that-despite ample opportunity-the Court has only substantively discussed the words 'feminist" or 'feminism " twice in its history, both times in non-majority opinions. The Note attempts to understand this' aversion to the vocabulary offeminism, examining factors from within the legal profession as well as the continuing societal aversion to the words. The Note' contends that the Court both reflects and exacerbates society's broader discomfort with the feminist label, and that the Court should do its part to reverse this semantic cycle. INTRODUCTION......................................................... 242 I. THE STAKES OF FEARING A NAME ..................................... 243 II. EMPIRICAL STUDY OF "FEMINISM" AT THE SUPREME COURT ................... 246 A. The Dearth of "Feminism" at the Supreme Court .......................... 246 B. Deliberate Bypass...................................249 III. MAKING SENSE OF THE JUDICIAL AVERSION ....................... 253 A. Intra-Legal Factors ............................ ....... 254 1. Courts of Appeals ........................ ........ 254 2. Supreme Court Briefs ..................... ........ 257 3. Other Factors............................ ........ 259 B. Continuing Modem Hostility to Feminism ................. 262 1. The Fact of Popular Discomfort..............................262 2. Source of Societal Resistance ................... 263 t Yale Law School, J.D. 2017; Yale College, B.A. 2012. My heartfelt thanks to Noah Lindell for his helpful comments on earlier drafts, and to Professor Amy Chua for her guidance and support. Thanks also to the wonderful editors of the Yale Journal of Law and Feminism-especially Meghan Brooks, Callie Wilson, Kelsey Gann, and Kayla Oliver-for their valuable edits and suggestions. Copyright C 2017 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism C. Reversing the Feedback Effect .......................... 265 CONCLUSION .................................................... ...... 266 "Always use the proper name for things. Fear of a name increases fear of

This Article is the first to confront the problem of how to enforce Title IX in a Trump Administration. It begins by acknowledging that Title IX is in danger: not only will the current administration probably not enforce it, but recent jurisprudence in both constitutional and administrative law throw Title IX’s and related administrative documents’ legality into doubt. Next, the Article establishes that states can act in this space—and catalogues the existing state legislation on campus sexual violence. Twelve states have legislated in harmony with Title IX, such as Illinois, but one—Georgia—is forcing its schools to violate Title IX. This Article concludes by analyzing the tools to keep states in check and arguing for a roadmap states should use when legislating on campus sexual violence.

INTRODUCTION ............................................................................................... 401 I.BACKGROUND: WAL-MART V. DUKES ........................................................... 405 II.THE IMPOSSIBLE CLASS ACTION................................................................. 409 III.MOVING FORWARD: OPTIONS FOR COLLECTIVE ADJUDICATION POSTDUKES ................................................................................................. 411

Scholars and other commentators have identified failures in the regulation of cosmetics—which depends heavily on voluntary industry self-regulation—and called for more stringent regulation of these products. Yet these calls have largely neglected an important dimension of the problem: the current laissez-faire approach to the regulation of cosmetics disproportionally places women, and particularly women who are members of other excluded groups, at risk. This Article examines federal cosmetics law and regulation through a feminist lens. It argues that cosmetics law and regulation have lagged behind that of the other major product categories regulated by the Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act of 1938 because cosmetics are a gendered product and industry. In addition, conflicting views of the meaning of cosmetics among self-identified feminists, and differences in women’s relationships to cosmetics, mean that reform efforts must confront opposition and tension both within and outside of feminism. Ultimately, this Article questions the legitimacy of the current approach to cosmetics law and regulation. It concludes with several recommendations about how to address some of the failures of cosmetics law and regulation.

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

This Note helps untangle the perceived tension between transgender bathroom access and women’s rights by examining the historical, legal, and normative case against sex-segregated bathrooms. Part I addresses two important aspects of the history of sex-segregated bathrooms: first, their origins, and second, the historical lack of high-profile feminist opposition to them. After this historical examination, Part II demonstrates that legal sources similarly fail to provide adequate justification for sex-segregated bathrooms. It surveys judicial opinions touching the matter, including Title VII and transgender rights litigation, highlighting a rich and underutilized body of legal reasoning. Part III demonstrates that none of the interests marshalled in support of sex-segregated bathrooms stands up to intermediate scrutiny, primarily because the sex-specific nature of these interests undercuts their importance. Finally, Part IV develops the normative case against sex-segregated bathrooms. Drawing on the work of social scientists, feminist theorists, and other scholars, Part IV argues that sex-segregated bathrooms are in fact normatively undesirable, harming women far more than they benefit them.

Crisis Pregnancy Centers (CPCs) adopt the look of medical practices — complete with workers in scrubs, ultrasound machines, and invasive physical exams — to deceive pregnant women into thinking they are being treated by licensed medical professionals. In reality, CPCs offer exclusively Bible-based, non-objective counseling. Numerous attempts to regulate CPCs have faced political roadblocks. Most recently, in NIFLA v. Becerra, the Supreme Court held that state efforts to require CPCs to disclose that they are not medically licensed are unconstitutional violations of CPCs’ First Amendment right to free speech. In the wake of that decision, pregnant women in crisis — a disproportionate percentage of whom are low-income women, minority women, or women in vulnerable or dangerous situations — continue to be subject to CPCs’ ideological marketing, masquerading as medical advice. This Article employs tort law to offer a novel way to regulate CPCs’ deceptive practices. It proposes that women who submit to physical exams or ultrasounds under CPCs’ false pretenses could successfully raise a battery claim. The intimate touching of a woman would most certainly be considered objectively offensive, and while the woman might technically consent to the touching, this consent is meaningless if it is based on misrepresentations. Contrary to popular understanding, the touching need not be intentionally malicious or result in physical injury to the plaintiff. This Article makes two contributions to the literature. First, it provides a practicable, novel solution to an urgent and timely issue. By relying on private causes of action, this Article’s proposal sidesteps the collective action problems and political willpower obstacles that have long hampered larger-scale attempts to regulate CPCs. It places the injured woman in the driver’s seat and allows her to be compensated for the dignitary harm imposed when CPCs use deception to gain access to her body. Second, this Article contributes to robust literatures in torts, informed consent, and medical ethics by reinforcing an increasingly blurry line between medicine and pseudo-medicine. Informed consent means something; it is not merely a vehicle through which ideology can be shoehorned. Where CPCs are not licensed, they should be sued for battery, which honors the individual’s dignity and is not deferential to an industry standard of care. Physicians should be allowed to have political voices. So, too, should pro-life activists. But each should have their policy debates, and win or lose them, in the political sphere. It does violence to the physician-patient relationship, and the trust that it requires, when this relationship is leveraged for ideological gains.